Opinion
13183
June 23, 1931.
Before TOWNSEND, J., Pickens. February, 1930. Affirmed.
Action by Vardrey T. Hardin against the City of Greenville and the Commission of Public Works. From an order sustaining a demurrer to the first cause of action in the complaint and overruling a demurrer to the second cause of action, both plaintiff and defendants appeal.
The complaint, notice to transfer and order directed to be reported are as follows:
COMPLAINTThe plaintiff, complaining of the above-named defendants, would respectfully show to the Court as follows:
I. FOR A FIRST CAUSE OF ACTION(1) That the defendant City of Greenville is a municipal corporation organized and existing under the laws of the State of South Carolina, having offices and agents in the County of Greenville, State of South Carolina, and is by statute made liable to any one injured by the negligence or mismanagement of its servants or agents; the Commissioners of Public Works of Greenville, S.C. constitute a body politic, under the statute laws of said State, and are allowed to sue and be sued and are a governmental agency of said municipal corporation in the matters herein referred to.
(2) That plaintiff is the owner in fee-simple of a certain tract of land in the said County and State, bordering upon waters of South Saluda River, containing 500 acres, more or less, of which there is a large amount of bottom lands along said River.
(3) That the said bottom lands, before the happening of the grievances hereinbelow set forth, were highly cultivable and fertile, and produced abundant and valuable crops and were very valuable; and that all of said lands of the plaintiff were of good value and easily salable at good market prices, and were also a source of good income to the plaintiff.
(4) That some time this year the defendants completed the construction of a large earthen dam across the waters of South Saluda River, above the lands of this plaintiff, which said dam was so negligently and carelessly constructed (as below set out) as to begin to disintegrate, slough, and give way soon after its construction, whereby the immense body of water impounded by the said dam was discharged and came down the channel of the said river in a large volume of flood water, flooding and covering the lands of the plaintiff, blocking, damaging, and destroying his drainage, and greatly injuring and damaging same as herein set out.
(5) That the said dam was improperly and negligently planned, constructed, and maintained, in that it was loosely and improperly put together; it was not built with proper plans, dimensions, and materials and with sufficient strength and safety, and not properly compressed, packed, and put together, and not built with sufficient and proper foundations, embankments, and outlets, nor with proper care as to shutting out water from nearby springs and protecting against seepage and leaks therein. That it was not provided with safe, sufficient, and strong outlet works and drainage pipes, but was provided with an insufficient, inadequate, and unsafe outlet works and drain pipes, with insufficient and improperly placed supports, gates, and valves; and that it was undermined and its strength impaired by the negligent and careless use of dynamite in blasting in and about said dam; and that it was built without sufficient and proper supervision and the advice of a competent engineer; and that the defendant knew, or ought to have known, of the aforesaid acts of omission or commission, all of which were carelessly and negligently done; and that the defendants negligently failed to properly inspect the plans and construction thereof and negligently received and approved the said structure, and kept and maintained same in breach of their duty to this plaintiff and other riparian owners on said river — all of which acts and omissions were negligent, and were the proximate cause of the injury to the plaintiff hereinbelow set forth.
(6) That, by reason of the aforesaid negligence in the construction and maintenance, the dam and drain pipe broke, was undermined and gave way, and huge portions of said dam sloughed off as aforesaid, letting out waters and making it necessary to release other waters whereby plaintiff's land was damaged as herein set forth.
(7) That all of said damage was caused by the negligence and mismanagement of defendants and their servants and agents in the particulars hereinbelow set forth.
(8) That, as the direct result of the aforesaid negligence and mismanagement of the defendant city, plaintiff's lands have been flooded, washed, and bogged and rendered unfit for cultivation; he has been prevented from planting and cultivating crops thereon; he has been put to inconvenience and annoyance, and suffered injury to his ditches and drainage and damages by reason of diminution and diversion of practically all of the waters of the river for the future, and the market value of his lands has been greatly depreciated; prior to the construction of said dam, there was a good market for said lands, and most of it was suitable for summer homes, but the building of the said dam and the acts of the defendants as herein set out has destroyed and ruined its market value for this and other purposes, and there have also been special damages to the other lands by reason of the damages referred to in the case of the bottom lands, the uplands being worth less and their rental value being less by reason of the injury to the bottom lands. All to their damage in the sum of $25,000.00.
II. FOR A SECOND CAUSE OF ACTION(1) That the defendant City of Greenville is a municipal corporation organized and existing under the laws of the State of South Carolina, having offices and agents in the County of Greenville, State of South Carolina, and is by statute made liable to any one injured by the negligence or mismanagement of its servants or agents; the commissioners of public works of Greenville, S.C. constitute a body politic under the statute laws of the said State, and are allowed to sue and be sued, and are a governmental agency of the said municipal corporation in the matters herein referred to.
(2) That plaintiff is the owner in fee-simple of a certain tract of land in said County and State, bordering upon waters of South Saluda River, containing 500 acres, more or less, of which a large amount is bottom lands along said river.
(3) That said bottom lands, before the happening of the grievances hereinafter set forth, were highly cultivable, and fertile, and produced abundant and valuable crops and were very valuable; and that all of the said lands of the plaintiff were of good value and easily salable at good market prices, and were also a source of good income to the plaintiffs.
(4) That some time this year the defendants completed the construction of a large earthen dam across the waters of South Saluda River above the lands of this plaintiff, which said dam was so negligently and carelessly constructed (as below set out), as to begin to disintegrate, slough, and give way soon after its construction, whereby the immense body of water impounded by the said dam was discharged and came down the channel of the said river in a large volume of flood water, flooding and covering the lands of the plaintiff, blocking, damaging, and destroying his drainage, and greatly injuring and damaging same as herein set out. That said dam was negligently built, without proper plans, dimensions, and materials and sufficient strength and safety, and not properly compressed and put together, nor with sufficient foundations, embankments, and outlets, nor with sufficient protection against springs, leaks, and seepage, nor with sufficient engineering supervision and advice, and negligently received and approved and maintained by the defendants without proper inspection, and that the presence thereof destroys the market value of the plaintiff's property, with especial damages to other lands by reason of the damage to the bottom lands, and that all such damages are the direct result of the negligent construction and presence of the public improvement of the city as aforesaid.
(5) That the said entry upon and flooding of the lands of the plaintiff were and are taking of private property for public use without the consent of the owner and without compensation therefor.
(6) That the said entry was unlawful, and was without the consent of the owner, and that plaintiff is legally entitled to compensation therefor, and that the value of the property so taken by the defendants is the sum of $25,000.00.
(7) That, as plaintiff is informed and believes, the defendants deny the right of the plaintiff to such compensation.
Wherefore, plaintiff demands judgment against the defendants for the sum of $25,000.00, and for the costs of this action.
NOTICE TO TRANSFERTo the attorneys for the plaintiff:
Take notice, reserving the right to demur, that on the first day of the next term of this Court, or as soon thereafter as counsel can be heard, we will move the Court:
1. For an order transferring this case to the equity calendar, and also,
2. For an order referring this case to the master to take the testimony.
This motion will be heard upon the pleadings in the case.
B.A. MORGAN, Attorney for Defendants.
ORDEROn hearing the demurrer to the first cause of action for failure to state facts sufficient to constitute a cause of action, the demurrer is sustained, and that cause of action stricken out of the complaint.
On hearing the motion to transfer the trial of the remaining (second) cause of action to Calendar 2 for trial on the chancery side of the Court, that motion is refused, as I think the plaintiff is entitled to a jury trial on the issues therein raised.
The defendants having given notice of their intention to appeal from this order, the trial of the action on circuit is stayed during the pendency of said appeal.
Mr. B.A. Morgan, for defendants, cites: Powers of municipal corporations: 108 S.C. 253; 3 Civ. Code, 1922, Secs. 3015, 4450. Power of Board of Commissioners: Civ. Code, 1922, Sec. 4432. Liability of municipality in tort: 154 S.C. 105; 3 Civ. Code, 1922, Sec. 4478. Liability of Commissioners of Public Works: 145 S.C. 27; 20 S.C. 116; 111 S.C. 7. Action is equitable: 96 S.C. 24; 64 S.C. 438; 53 S.C. 575.
Messrs. B.F. Martin and Price Poag, for plaintiff.
June 23, 1931. The opinion of the Court was delivered by
This is an appeal from an order of Hon. W.H. Townsend, presiding Judge, dated February 24, 1930, sustaining a demurrer to the first cause of action to the complaint and refusing to sustain the demurrer as to the second cause of action.
In addition to the question of the sufficiency of the complaint, the defendants gave notice of a motion to transfer the trial of the case to Calendar 2 on the chancery side of the Court. This motion was refused by the presiding Judge in the order disposing of the demurrer on the ground that the plaintiff was entitled to a trial by jury on the issues raised in the second cause of action.
Both plaintiff and defendants appeal from the order of Judge Townsend. The defendants raise three exceptions.
The first exception is that the Circuit Judge erred in not holding that, the question being one of eminent domain, where the method of ascertaining the compensation is not provided, the law required that the case be heard by a Court in chancery to determine this in the first instance, whether there was a taking. The plaintiff clearly had the right, under the case of Hopkins v. Clemson College, 77 S.C. 12, 57 S.E., 551, to sue the defendants for the taking of private property without just compensation. In the absence of a statute fixing the method of ascertaining the amount of compensation for such taking, the proper remedy is by an action in damages to determine the value of the property so taken. This exception is therefore overruled.
The second exception alleges error in his Honor refusing to hold that, where there is a lawful authority provided for the taking of property for municipal waterworks, such method of ascertaining the amount of compensation is exclusive. If the defendants had desired to avail themselves of their rights under the alleged statutory authority providing for condemnation and compensation, the plaintiff would have been required to come into a Court and submit to such taking and to have the damages assessed in accordance with the terms of the statute. The defendants did not elect to do this, and there is no provision in the statute for the defendants to force the plaintiff to take this course of action. The statute is made for the benefit of the person desiring to take the property, and outlines a procedure by which property can lawfully be taken and proper compensation assessed therefor. To hold that the plaintiff would have to wait for the defendants to proceed under the condemnation statute would be to deprive the plaintiff of a substantial and material right. According to the record, the defendants have not yet sought to bring a proceeding under the authority of the condemnation statute, and the plaintiff was justified in bringing an action for damages for the alleged unlawful taking of his property.
Exception 3 alleges error in the Circuit Judge refusing to transfer the cause to Calendar 2 and submit the matter to the chancery Court. In a suit for compensation for the taking of private property for public use without compensation, the plaintiff has a right to proceed on the law side of the Court if he deems it proper. Of course, if the defendants had elected to begin condemnation proceedings under the statute, the plaintiff would have had no right to bring an action for damages with the proceeding pending, but this was not done, and the plaintiff was within his rights to bring the action which has been brought. The exceptions of the defendant are therefore overruled.
The plaintiff raises two exceptions to the ruling of his Honor, the presiding Judge.
Exception 1 alleges that his Honor erred in sustaining the demurrer as to the first cause of action on the ground that the same failed to state facts sufficient to constitute a cause of action, whereas his Honor should have held that the complaint stated a good first cause of action in tort, for injury based upon the improper and negligent, construction and maintenance of the dam to the injury of the plaintiff. The defendants are a municipal corporation and an arm of municipal government itself. Both are governmental agencies, and can only be sued in tort by express statutory authority. In such suit the plaintiff would have to comply with all of the terms of the statute and bring the suit under the provisions of the statute. There is no statute giving the plaintiff the right to sue in tort for damages for the improper and negligent construction and maintenance of a dam by a municipality or by a municipal waterworks commission. This exception is therefore overruled.
The second exception raises almost the same question, except states in addition that the first cause of action is based upon negligence and mismanagement of the defendant city with respect to the construction, management, and maintenance of the dam under the control of the city. Such cause of action would have to be brought, as above stated, under statutory authority, and no such authority exists.
Neither the plaintiff nor the defendant have been deprived of any material right by the order of Judge Townsend. The plaintiff has no cause of action in tort for the negligent construction and maintenance of the dam, but the plaintiff has stated a good cause of action for the taking of private property for public use without just compensation. This action is a law action on the law side of the Court, and the issue must be determined by a jury.
For a full discussion of the question of the right to sue the State or a branch of the government for the taking of private property for public use without just compensation, see the case of Chick Springs v. The Highway Department, 159 S.C. 481, 157 S.E., 842, opinion by Mr. Justice Cothran.
It is therefore ordered that the exceptions of both plaintiff and defendants be overruled, and that the judgment of the lower Court be affirmed.
MR. CHIEF JUSTICE BLEASE concurs.
MESSRS. JUSTICES COTHRAN and CARTER concur in part.
MR. JUSTICE STABLER concurs in result.
MR. JUSTICE COTHRAN (for modification): I have not been able to discern any substantial difference between the two alleged causes of action, separately stated in the complaint. Each appears to me to be based upon the constitutional right of the plaintiff to compensation for the taking of his property for public use without due process of law. The supposed differentiating allegation contained in the second cause of action: "That the said entry upon and flooding of the lands of the plaintiff, were and are taking of private property for public use, without the consent of the owner and without compensation therefor," is but a legal characterization of the acts of the defendants alleged in the first cause of action, and adds nothing that could not have been relied upon in support of it. The second cause of action, therefore, is a needless repetition of the first which in itself fully states the basis of the plaintiff's grievance.
That the first alleged cause of action states a complete one I think is concluded by the recent decision of this Court in the case of Chick Springs Company v. Highway Commission, 159 S.C. 481, 157 S.E., 842, opinion filed March 18, 1931, and that his Honor, Judge Townsend, was in error in sustaining the demurrer to it. I concur in his disposition of the other matters referred to in his order.
I think therefore that the judgment of this Court should be that the order appealed from, so far as it sustains the demurrer of the defendants to the first cause of action, be reversed, and that the case be remanded to the Circuit Court for such further proceedings as may be had consistent with the conclusions above stated.
MR. JUSTICE CARTER concurs.